1.
The purpose of these amendments to the Migration Amendment
(Designated Unauthorised Arrivals) Bill 2006 (‘the
Bill’) is to:

· affirm
Parliament’s view that a minor who is a designated
unauthorised arrival or transitory person residing in a declared
country will only be detained as a measure of last
resort;

· note the
Minister’s power to direct officers of the Department to take
all reasonable steps to work with a declared country with a view to
having this principle upheld, such as through the establishment
of residential-style
accommodation in a community setting for women, children and
families;

· insert a
non-compellable, non-reviewable power for the Minister to grant a
visa to a designated unauthorised arrival, transitory person, or
person who ceased to be a transitory person on being determined to
be a refugee;

·
note the Minister’s power to direct DIMA officers to work
with host countries (declared countries) to put appropriate
accommodation arrangements in place for designated unauthorised
arrivals, transitory persons, and person who have ceased to be
transitory persons on being determined to be refugees;

·
require a report to be prepared and tabled, each financial year, on
achievement of the 90 day target for determining claims for refugee
status offshore, on arrangements for merits review of determination
of such claims, and on the achievement of the 90 day target for
processing reviews from the date of commencement of the review;

· enable the Minister to
refer to the Commonwealth Ombudsman for investigation and report,
certain actions relating to designated unauthorised arrivals,
transitory persons, or persons who have ceased to be transitory
persons on being determined to be refugees;

· make clear on the face of the Act that
the Ombudsman has powers to investigate the actions of DIMA
officers overseas, including in relation to refugee assessment
processes in offshore processing centres, while enhancing those
powers through the provision for mandatory tabling of statements of
all reports received from the Ombudsman;

·
require an independent review of the operation and effect of the
amendments made by the Bill as soon as practicable after the Bill
has been in operation for 2 years, and require the report of that
review to be tabled in Parliament;

·
provide that the definition of designated unauthorised arrival will
cease to include unauthorised sea arrivals to the mainland of
Australia (as opposed to unauthorised sea arrivals at excised
offshore places) on the day which is 5 years after the day on which
the Bill receives Royal Assent, so that on and from that date the
coverage of the offshore processing arrangements would revert to
that under the current provisions of the Migration Act 1958
(the Act);

·
apply the sunset provisions to persons entering the migration zone
unlawfully after their commencement such that those persons who
entered before the sunset provisions commence would continue to be
designated unauthorised arrivals liable to offshore processing;
and

·
make minor technical amendments relating to the exemption (from
being a designated unauthorised arrival) for persons brought to
Australia for Customs purposes, and ensure legal proceedings cannot
be instituted or continued in relation to the removal of a
transitory person before, during or after that removal.

financial impact
statement

2.
The financial impact of Schedule 2 is negligible unless the
sunsetting of offshore processing arrangements for unauthorised sea
arrivals on the mainland attracts increased people smuggling
activity, in which case further resources may need to be invested
in onshore processing arrangements.

3.
There will be some systems costs to establish IT systems to enable
reporting against the 90 day time frame, in the order of
$1million.

4.
There will also be some costs involved in the conduct of the review
of the operation and effect of the amendments, to be conducted two
years after the commencement of the Bill.

5.
If additional resources are required for the Office of the
Commonwealth Ombudsman as a result of the amendments, additional
resources will be provided.

6.
The Commonwealth will meet all relevant costs involved in
implementing the offshore processing arrangements.

1.
This amendment amends clause 2 of the Bill, which sets out the
commencement provisions of the Bill, and inserts a new clause 2
into the Bill. New subclause 2(1) includes a table setting out when
various provisions of the Bill are to commence. Under this
table:

(a)
Sections 1 to 3 of the Bill will commence on the day on which the
Bill receives the Royal Assent;

(b)
Schedule 1 to the Bill will commence on the day after the Bill
receives the Royal Assent; and

(c)
Schedule 2 to the Bill will commence on the day after the end of
the period of 5 years beginning on the day on which the Bill
receives the Royal Assent.

2. New
subclause 2(2) provides that Column 3 contains
additional information
that is not part of this Act and that information in Column 3 may
be edited in any published version of this Act.

Amendment
2 Schedule 1,
heading, page 3 (line 2)

3. This amendment amends the heading
before item 1 of Schedule 1 to the Bill, to replace
“Amendments” with “Amendments commencing on the
day after Royal Assent”.

4. This purpose of this amendment is to
further clarify that, as provided for in clause 2 of the Bill (as
amended by amendment 2 of these amendments), the amendments
contained in Schedule 1 to the Bill are to commence on the day
after the Bill receives the Royal Assent.

Amendment 3
Schedule 1, page 3 (before line 5)

5. This amendment inserts new item 1A
before item 1 of Schedule 1 to the Bill. New item 1A inserts new
subsection 4AA(1A) after subsection 4AA(1) in Part 1 of the
Migration Act 1958 (the Act).

6. New subsection 4AA(1A) is an
affirmation by Parliament of the principle that a minor who is a
designated unauthorised arrival or a transitory person residing in
a country in respect of which a declaration is in force under
subsection 198A(3) of the Act, will only be detained as a measure
of last resort.

7. The purpose of new subsection
4AA(1A) is for the Parliament to confirm and lend additional
emphasis to the Government’s view that children should not be
detained, while being processed under offshore processing
arrangements, except as a measure of last resort.

8. A note is also included confirming
the Minister’s power to direct officers of the Department to
take all reasonable steps to work with declared countries
with a view to upholding this principle, as the means by
which the principle is to be reflected by government action.

9. For the information of members, it
is noted that the Government intends to establish in Nauru
residential-style accommodation for women, children and families in
a community setting. Security around such a village-style
complex would be non-intrusive and designed to ensure the safety
and protection of the women, children and families living
there. It would be fenced, but residents would be able to
enter and exit during the day on their own recognisance. Night time
access would be monitored and controlled by IOM-engaged private
security personnel for safety reasons. Families would be free
to come and go consistent with their Nauruan visa
requirements.

10. It should be noted however, as with
the onshore arrangements, that there will be some circumstances
warranting restrictions on movement of individuals. For
example, an initial period of restriction for health checking and
other processing may be required.

Amendment 4
Schedule 1, item 5, page 3 (line 21)

11. This amendment amends item 5 of
Schedule 1 to the Bill. In particular, it changes the wording of
proposed new paragraph (d) of the definition in subsection 5(1) of
‘transitory person’, by replacing the word
“assessed” with “determined”. This is a
technical amendment to ensure consistency of expression.

Amendment 5
Schedule 1, item 8, page 5 (lines 23 to 29)

12. This amendment replaces the proposed
paragraph 5F(2)(c) in item 8 of Schedule 1 to the Bill with a new
proposed paragraph 5F(2)(c).

13. Paragraph 5F(2)(c) in item 8 of
Schedule 1 to the Bill currently provides that, for the purposes of
new section 5F, a person is an ‘exempt person’ if that
person brought to the migration zone, pursuant to subsection
185(3A) of the Customs Act 1901 (‘the Customs
Act’) as a result of being found on a ship detained under
section 185 of that Act, and no officer reasonably suspected that
the person was seeking to enter the migration zone and would, if in
the migration zone, be an unlawful non citizen. The wording of this
provision may cause operational difficulties for the Australian
Customs Service, in terms of which officer must reasonably hold
that suspicion.

14. New proposed paragraph 5F(2)(c)
provides that, for the purposes of new section 5F, a person is an
‘exempt person’ if that person was brought to the
migration zone, pursuant to subsection 185(3A) of the Customs Act
as a result of being found on a ship detained under section 185 of
that Act, and was not believed by the officer who detained the ship
to be either seeking to enter the migration zone and to be a person
who would, if in the migration zone, be an unlawful non-citizen.
This provides certainty as to which officer must have, or not have,
the requisite state of mind.

Amendment 6
Schedule 1, page 8 (after line 7)

15. This amendment repeals the note
after subsection 65(1) in Division 3 of Part 2 of the Act and
substitutes a new note. The new note includes a reference to new
section 84A, inserted by amendment 7 which inserts new item 16B
into the Bill, and this amendment is therefore consequential and
technical in nature.

Amendment
7
Schedule 1, page 8, after proposed item 16A

16. This amendment inserts new item 16B
in the Bill after item 16A. New item 16B inserts new section 84A at
the end of Subdivision AG of Division 3 of Part 2 of the
Act.

17. New section 84A provides the
Minister with a non-compellable, non-reviewable power to grant a
visa to a designated unauthorised arrival, transitory person or a
person who has ceased to be a transitory person by reason of having
been found to be a refugee.

18. New subsection 84A(1) provides that
section 84A applies to a person who is a designated unauthorised
arrival, transitory person or a person who has ceased to be a
transitory person by reason of having been found to be a
refugee.

19. New subsection 84A(2) provides that
the Minister may, if he or she thinks it is in the public interest
to do so, grant a visa of a particular class to a person whom
section 84A applies irrespective of whether that person has applied
for that visa.

20. New subsection 84A(3) provides that,
in exercising the power under subsection 84A(2), the Minister is
not bound by Subdivision AA (provisions governing applications for
visas), Subdivision AC (provisions governing the grant of visas),
Subdivision AF (provisions governing Bridging visas) in Division 3
of Part 2, or by the regulations, but is bound by all other
provisions of the Act.

21. New subsection 84A(4) provides that
the Minister’s power to grant such a visa is one which is
non-compellable. That is, the Minister does not have a duty to
consider whether to exercise the power, irrespective of whether he
or she is requested to do so by any person, or in any other
circumstances.

22. New subsection 84A(5) provides that
this power may only be exercised by the Minister personally (that
is, it is a non-delegable power).

23. New subsection 84A(6) provides that,
subject to new subsection 84A(7), where the Minister grants a visa
under subsection 84A(2), he or she is required to table a statement
in both Houses of Parliament detailing that the Minister has
granted a visa and setting out his or her reasons for granting that
visa (in particular, why he or she believes it to be in the public
interest).

24. New subsection 84A(7) specifies
information that is not to be included in such a statement. This is
information which may identify the person to whom the visa has been
granted or, if the Minister thinks that it would not be in the
public interest to publish the name of any other person connected
in any way with the grant of the visa, the name of that person or
any information that may identify that person.

25. New subsection 84A(8) provides that
such a statement must be tabled in both Houses of Parliament within
15 sitting days after 1 July (if the decision is made between 1
January and 30 June) or after 1 January ( if the decision is made
between 1 July and 31 December).

Amendment
8
Schedule 1, page 8 (after line 14)

26. This amendment inserts new item 18A
after item 18 in Schedule 1 to the Bill. New item 18A inserts a
note at the end of subsection 198A(1) in Division 8 of Part 2 of
the Act.

27. Subsection 198A(1) of the Act, as
amended by item 18 of the Bill, provides that an officer may take a
designated unauthorised arrival from Australia to a country in
respect of which a declaration is in force under subsection
198A(3).

28. The note inserted by this item
states that the Minster has the power to direct officers of the
Department to take all reasonable steps to encourage countries in
respect of which declarations are in force under subsection 198A(3)
to provide suitable residential accommodation for people who are
taken to those countries.

29. The purpose of this amendment is to
confirm that the power exists to allow the Minister to direct
officers of the Department to take such steps.

Amendment
9
Schedule 1, page 9 (after line 1)

30. This amendment inserts new item 23A
after item 23 in Schedule 1 to the Bill. New item 23A inserts
“84A” after the word “section” in paragraph
276(2A)(aa) of the Act.

31. Section 276 sets out the
circumstances in which a person is considered to give
‘immigration assistance’ for the purposes of Part 3 of
the Act (which deals with migration agents and immigration
assistance). Paragraph 276(2A)(aa) provides that a person gives
immigration assistance if that person uses, or purports to use,
knowledge of, or experience in, migration procedure to assist
another person by preparing, or helping to prepare, a request to
the Minister to exercise a power under section 195A (grant of visa
to a detainee), 197AB (residence determination) or 197AD
(revocation or variation of a residence determination), whether or
not the exercise of the power would relate to the other
person.

32. By inserting the reference to
section 84A in paragraph 276(2A)(aa), the meaning of
‘immigration assistance’ is extended to include where a
person uses, or purports to use, knowledge of, or experience in,
migration procedure to assist another person by preparing, or
helping to prepare, a request to the Minister to exercise his or
her power under section 84A to grant a visa to a designated
unauthorised arrival, transitory person, or person who has ceased
to be a transitory person on being determined to be a refugee,
whether or not the exercise of the power would relate to the other
person.

33. The purpose of this amendment is to
ensure that persons providing such assistance are considered to be
providing ‘immigration assistance’ for the purposes of
Part 3 of the Act, and are thus governed by the requirements in
relation to providing immigration assistance.

Amendment
10
Schedule 1, page 9, after proposed item 23A

34. This amendment inserts new item 23B
after item 23A in Schedule 1 to the Bill. New item 23B inserts
“84A” after the word “section” in
subsection 277(5) of the Act.

35. Subsection 277(5) provides that, for
the purposes of Part 3 of the Act, a lawyer is not considered to
give ‘immigration legal assistance’ if he or she
provides advice to another person that is for the purpose of the
preparation or making of a request to the Minister to exercise a
power under section 195A (grant of visa to a detainee), 197AB
(residence determination) or 197AD (revocation or variation of a
residence determination), whether or not the exercise of the power
would relate to the other person.

36. Inserting the reference to section
84A in subsection 277(5) means that ‘immigration legal
assistance’ will not include where a lawyer provides advice
to another person that is for the purpose of the preparation or
making of a request to the Minister to exercise his or her power
under section 84A to grant a visa to a designated unauthorised
arrival, transitory person, or a person who ceased to a transitory
person on being determined to be a refugee, whether or not the
exercise of the power would relate to the other person.

37. The purpose of this amendment is to
ensure that lawyers providing such assistance are not considered to
be providing ‘immigration legal assistance’ for the
purposes of Part 3 of the Migration Act.

Amendment
11
Schedule 1, page 9, after proposed item 23B

38. This amendment inserts new item 23C
after item 23B in Schedule 1 to the Bill. New item 23C inserts
“84A” after the word “section” in paragraph
282(4)(f) of the Act.

39. Subsection 282(1) makes it an
offence for a person, who is not a registered migration agent, to
ask for or receive any fee or other reward for the making of
‘immigration representations’. Subsection 282(2) makes
it an offence for a person to ask for or receive any fee or other
reward for the making of ‘immigration representations’
by another person who is not a registered migration
agent.

40. Paragraph 282(4)(f) provides that a
person makes immigration representations if he or she makes
representations to, or otherwise communicates with, the Minister, a
member of the Minister’s staff or the Department, on
behalf of a person who has made (or is proposing to make) a request
to the Minister to exercise a power under section 195A (grant of visa to
detainee), 197AB (residence
determination) or 197AD (revocation or variation of residence
determination), whether or not the exercise of the power would
relate to the other person, about the request.

41. This item extends the
definition of ‘immigration representations’ to include
where a person makes representations to, or otherwise communicates
with, the Minister, a member of the Minister’s staff or the
Department on behalf of a person who has made (or is proposing to
make) a request to the Minister to exercise a power under new
section 84A to grant a visa to a designated unauthorised arrival,
transitory person, or person who ceased to be a transitory person
on being determined to be a refugee.

42. The purpose of this amendment is to
ensure that persons providing such representations are considered
to be providing ‘immigration representations’ for the
purposes of Part 3 of the Act.

Amendment
12
Schedule 1, page 9 (after line 10)

43. This amendment inserts new item 26A
after item 26 in Schedule 1 to the Bill. New item 26A replaces
“91F” with “84A, 91F” in paragraph
474(7)(a) of the Act.

44. Subsection 474(1) provides that a
‘privative clause decision’ is final and conclusive and
must not be challenged, appealed against, reviewed, quashed or
called in question in any court and is not subject to prohibition,
mandamus, injunction, declaration or certiorari in any court on any
account.

45. Subsection 474(2) defines
‘privative clause’ to mean a decision of an
administrative character made, proposed to be made, or required to
be made, as the case may be, under the Act or under a regulation or
other instrument made under that Act (whether in the exercise of a
discretion or not), other than a decision referred to in
subsections 474(4) or (5).

47. The effect of this item is to
provide that a decision by the Minister made under new section 84A
is a privative clause decision for the purposes of section
474.

48. The purpose of this amendment is to
achieve consistency with other provisions relating to the exercise
of the Minister’s non-compellable powers under the
Act.

Amendment
13
Schedule 1, item 27, page 9 (line 24)

49. This amendment makes a minor
technical amendment to item 27 of the Bill, which inserts new
section 486R into the Act. The item amends the wording of proposed
paragraph 486R(2)(a) to omit “seeking asylum” and
substitute “claiming refugee status”. This
amendment is to ensure consistency of expression.

Amendment 14
Schedule 1, item 27, page 9 (line 26)

50. This amendment makes a minor
technical amendment to item 27 of the Bill, which inserts new
section 486R into the Act. The item amends the wording of proposed
subparagraph 486R(2)(a)(i) to omit “assessing” and
substitute “determining”. This amendment is to
ensure consistency of expression.

Amendment 15
Schedule 1, item 27, page 9 (after line 31)

51. This amendment amends item 27 of
Schedule 1 to the Bill by inserting new paragraph 486R(2)(aa) after
paragraph 486R(2)(a).

52. Proposed subsection 486R(1) provides
that the Secretary must, in regard to each financial year
(commencing the year ending 30 June 2007), provide to the Minister
a report under section 486R not later than 30 September in the next
financial year.

53. Proposed subsection 486R(2) (as
amended by amendments 13 to 17) provides that a report under
section 486R must include information about:

· arrangements during that financial
year for designated unauthorised arrivals and transitory persons
claiming refugee status, including arrangements for determining any
claims for refugee status made by such persons, and for the
accommodation, health care and education of such
persons;

· the number of claims for refugee
status (ie the number of requests for determination of refugee
status), by designated unauthorised arrivals and transitory
persons, that are determined during that financial year;
and

· the number of designated
unauthorised arrivals and transitory persons determined, during
that financial year, to be refugees.

54. New paragraph 486R(2)(aa) provides
that, in addition to the above information, the report must also
contain details of the arrangements during that financial year for
review of any determinations of claims for refugee status made by
designated unauthorised arrivals and transitory persons, including
details about the qualifications of people carrying out any such
reviews.

55. The purpose of new paragraph
486(2)(aa) is to require the Secretary’s report to the
Minister to include details of the arrangements for review of any
determinations of claims for refugee status made by designated
unauthorised arrivals and transitory persons, including details
about the qualifications of people carrying out any such reviews.
The Minister is required to table a copy of the report in each
House of the Parliament (subsection 486R(5)) within 15 sitting days
for each House after the Minister receives the report.

Amendment 16
Schedule 1, item 27, page 10 (line 1)

56. This amendment amends item 27 of
Schedule 1 to the Bill by omitting “asylum claims” in
paragraph 486R(2)(b) and substituting “claims for refugee
status”. This technical amendment ensures consistency of
expression.

Amendment 17
Schedule 1, item 27, page 10 (line 2)

57. This amendment amends item 27 of
Schedule 1 to the Bill by omitting “that are assessed”
in proposed paragraph 486R(2)(b) and substituting
“determined”. This technical amendment corrects a
grammatical error and ensures consistency of expression.

Amendment
18
Schedule 1, item 27, page 10 (after line 3)

58. This amendment amends item 27 of
Schedule 1 to the Bill by inserting new paragraphs 486R(2)(ba) and
(bb) after paragraph 486R(2)(b).

59. New
paragraph 486R(2)(ba) requires that the report provided by the
Secretary to the Minister under subsection 486R contain information
about the number (which could be zero) of claims for refugee
status, by designated unauthorised arrivals and transitory persons,
that, by the end of the financial year, have not been determined
within 90 days of being made.

60. New
paragraph 486R(2)(bb) requires that if the report provided by the
Secretary to the Minister under section 486R mentions a claim for
refugee status under paragraph (ba), the report must contain
information about the reasons why it was not completed within 90
days of being made.

61. The purpose of new subsections
486R(2)(ba) and (bb) is to require the Secretary to report to the
Minister on claims for refugee status not determined within 90
days. The Minister is required to table the report in both
Houses of the Parliament (subsection 486R(5)) within 15 sitting
days of each House after the Minister receives the
report.

Amendment 19
Schedule 1, item 27, page 10 (line 5)

62. This amendment amends item 27 of
Schedule 1 to the Bill by inserting new paragraphs 486R(2)(d) and
(e) at the end of subsection 486R(2).

63. New subsection 486R(2)(d) provides
that the report provided by the Secretary to the Minister under
subsection 486R contain information about the number (which could
be zero) of reviews of determinations of claims for refugee status
by designated unauthorised arrival and transitory persons that, by
the end of that financial year, have not been completed within 90
days starting on the day on which the person carrying out the
review started the review.

64. New paragraph 486R(2)(e) provides
that, in addition to the above information, if a review is
mentioned in such a report under paragraph (d), that report must
include details of the reasons why it was not completed within the
period of 90 days starting on the day on which the person carrying
out the review started the review.

65. The purpose of new paragraphs
486R(2)(d) and (e) is to require the Secretary to report to the
Minister on reviews of determinations of refugee status not
completed within 90 days. The Minister is required to table the
report in both Houses of the Parliament (subsection 486R(5)) within
15 sitting days of each House after the Minister receives the
report.

Amendment
20
Schedule 1, page 10 (after line 18)

66. This amendment inserts new item 27A
after item 27 of Schedule 1 to the Bill. New item 27A inserts Part
8E before Part 9 of the Act. Part 8E contains new sections 486S,
486T, 486U, and 486V. New item 27A also inserts a Note after
new subsection 486S(1).

New Part
8E - Ombudsman investigations in relation to designated
unauthorised arrivals, transitory persons and
refugees

67. New
Part 8E relates to investigations by the Commonwealth Ombudsman
into designated unauthorised arrivals, transitory persons and
persons who have ceased to be transitory persons by reason of
having been determined to be refugees. The amendments make clear on
the face of the Act that the Ombudsman has powers to investigate
action relating to matters of administration taken by a Department
in relation to designated unauthorised arrivals, transitory persons
and persons who have ceased to be transitory persons on being
determined to be refugees. The amendments also enhance the powers
of the Ombudsman through the provision of mandatory tabling
requirements.

68. New subsection 486S(1) provides that
the Minister may refer action, being action that relates to a
matter of administration, taken by a Department or prescribed
authority relating to such persons to the Commonwealth Ombudsman
for investigation and report by the Ombudsman.

69. The Note following new subsection
486S(1) points out that in addition investigation under this Part
8E, the Commonwealth Ombudsman may also investigate action, which
relates to a matter of administration, taken by a Department or
prescribed authority, regardless of the geographical location of
the action, under the Ombudsman Act 1976. The note refers to
section 3C of the Ombudsman Act - that section provides that
the Ombudsman Act applies both within and outside
Australia.

70. Subsection 486S(2) provides that for
the purposes of this section, “action, being action that
relates to a matter of administration, taken by a Department or
prescribed authority”, includes action that would be taken to
be action taken by a Department or prescribed authority under
subsection 3(4B) of the Ombudsman Act 1976 . This has the
effect that action taken by a service provider contracted to the
Department will be taken to be action of the Department, and will
be able to be investigated by the Ombudsman.

71. Subsection 486S(3) provides that in
section 486S:

Department has the meaning given by subsection 3(1) of the
Ombudsman Act 1976; and

prescribed authority has the meaning given by subsection
3(1) of the Ombudsman Act 1976 .

72. The purpose of new section 486S is
to enable the Minister to refer matters relating to designated
unauthorised arrivals, transitory persons and persons who have
ceased to be transitory persons on being determined to be refugees,
to the Commonwealth Ombudsman for investigation and report, and to
confirm the jurisdiction of the Commonwealth Ombudsman in relation
to actions of a Department (including officers of the Department)
or prescribed authority regardless of the geographical location of
the action. Matters which could be referred would include, for
example, circumstances where a person has been resident at an
offshore processing centre for more than two years.

73.
New subsection 486T(1) provides that, as soon as practicable
after the Minister refers action to the Commonwealth Ombudsman
under new subsection 486S(1), the Commonwealth Ombudsman must
investigate the action and provide the Minister with a written
report on the action.

74.
New subsection 486T(2) provides that such a report may include any
recommendations that the Commonwealth Ombudsman considers
appropriate.

75.
New subsection 486T(3) further provides that the Minister is not
bound by any of the recommendations made by the Commonwealth
Ombudsman.

76.
New subsection 486T(4) requires the Ombudsman’s report to
include a statement, for the purposes of tabling in Parliament,
that sets out or paraphrases so much of the content of the report
as the Ombudsman considers can be tabled without adversely
affecting the privacy of any person. The purpose of new subsection
486T(4) is to ensure that any information contained in a report,
which the Ombudsman considers could adversely affect the privacy of
any person, can be removed from the statement to be tabled in
Parliament.

77. New
subsection 486T(5) provides that the requirement to provide a
report remains even if the person has, since the Minister referred
the action under subsection 486S(1), ceased to be a designated
unauthorised arrival or transitory person.

78.
New section 486U requires that the Minister table the
Ombudsman’s statement, referred to in new subsection 486T(4)
explained above, in both Houses of Parliament within 15
sitting days of each House after the Minister receives the
report.

79.
New subsection 486V(1) provides that the Ombudsman Act 1976
applies in relation to the Ombudsman’s investigation of
action and preparation of a report, under section 486T, as if the
investigation of the action and preparation of the report were an
investigation under that Act. This is to ensure that the Ombudsman
may exercise all of his or her powers, conferred by the Ombudsman
Act in relation to investigations and reports under that Act, when
investigating and reporting under section 486T of the Migration
Act, and that the corresponding protections under the Ombudsman Act
would also apply. Those powers include the power to obtain
information and documents (sections 8 and 9 of the Ombudsman Act)
and the power to examine witnesses (section 13 of the Ombudsman
Act); those sections also provide protections for persons providing
information to the Ombudsman in relevant circumstances.

80.
New subsection 486V(2) provides that the Ombudsman’s
functions include the functions conferred on the Ombudsman by Part
8E of the Act.

Amendment 21
Schedule 1, item 38, page 11 (lines 28 to 30)

81. This amendment replaces item 38 in
Schedule 1 to the Bill with new item 38. New item 38 replaces
paragraph 494AB(1)(d) in Part 9 of the Act with new paragraph
494AB(1)(d).

82. Section 494AB provides that certain
legal proceedings against the Commonwealth may not be instituted or
continued in any court. Paragraph 494AB(1)(d) relates to removals
from Australia in respect of transitory persons.

83. New item 38 repeals proposed
paragraph 494AB(1)(d) and inserts new paragraph 494AB(1)(d). New
paragraph 494AB(1)(d) operates to prohibit the institution or
continuation of legal proceedings relating to the removal from
Australia under the Act of a person who is, or was at the time of
the removal, a transitory person.

84. This is a technical amendment to
ensure that the prohibition in paragraph 494AB(1)(d) applies
whether the legal proceedings are instituted or continued before,
during, or after the removal of the person. This is to ensure that
the amended paragraph 494AB(1(d) reflects the current position
under the current Act.

Amendment
22
Schedule 1, page 13 (after line 30)

85. This amendment inserts new item 43A
after item 43 in Schedule 1 to the Bill.

86. New subitem 43A(1) provides that the
Minister must cause an independent review of the operation and
effect of the amendments made by the Bill. Subitem 43A(2) further
provides that the review must be undertaken as soon as practicable
after two years from the commencement of this item.

87. New subitem 43A(3) requires the
person carrying out the review to, within 6 months of commencing
the review, provide to the Minister a written report of the review
which includes an assessment of the operation and effect of the amendments made
by the Bill, and alternative approaches or mechanisms as
appropriate.

88. Subitem 43A(4) provides that the
Minister must table a copy of the report in each House of
Parliament within 15 sitting days of that House after the report is
received.

89. Subitem 43A(5) provides that, before
the copy of the report is tabled pursuant to subitem 43A(4), the
Minister may remove information from the report if the Minister is
satisfied that the inclusion of the information is contrary to the
public interest or adversely affects the privacy of any
person.

90. The purpose of new item 43A is to
require an independent review of the operation and effect of the
amendments made by the Bill.

Amendment
2 3 Page 14
(after line 12)

91. This amendment inserts new Schedule
2 after Schedule 1 to the Bill.

Amendments commencing 5 years
after Royal Assent

92.
Schedule 2 contains amendments to the Migration Act which are to
commence on the day after the end of the period of 5 years
beginning on the day on which the Bill receives the Royal Assent.
The effect of these amendments will be that offshore processing
arrangements will revert to that in place prior to the commencement
of Schedule 1 to the Bill. All unauthorised sea arrivals to
mainland Australia (that is, to a place other than an
‘offshore excised place’) on or after the commencement
of Schedule 2 will not become ‘designated unauthorised
arrivals’ within the meaning of section 5F. On and after the
commencement of Schedule 2, only persons arriving unauthorised at
‘excised offshore places’(whether by air or sea) will
be liable to be taken to a country in which a declaration is in
force under subsection 198A(3), and be liable to offshore
processing.

93. New item 1 of Schedule 2 will
operate on the commencement of Schedule 2 to replace paragraph
5F(1)(b) (as inserted by item 8 in Schedule 1 to the Bill) with new
paragraph 5F(1)(b).

94. Paragraph 5F(1)(b), as inserted by
item 8 in Schedule 1 to the Bill, operates to provide that a person
is a ‘designated unauthorised arrival’ if that person
became an unlawful non citizen because the person entered Australia
at an excised offshore place after the excision time for that
offshore place or entered Australia unlawfully by sea (see
subsection 5F(8)) on or after 13 April 2006.

95. New paragraph 5F(1)(b), to come into
effect 5 years after the Bill receives Royal Assent, operates to
provide that a person is a ‘designated unauthorised
arrival’ if that person became an unlawful non citizen
because the person entered Australia by sea (see subsection 5F(8))
or entered Australia by air (see subsection 5F(9)) at an
‘excised offshore place’ after the excision time for
that offshore place. The definition of a designated unauthorised
arrival will no longer, on or after the commencement of Schedule 2,
refer to persons who entered Australia by sea on or after 13 April
2006.

96.
New item 2 of Schedule 2 amends subsection 5F(9) of the Act (as
inserted by item 8 of the Bill). Subsection 5F(9) is amended by
omitting “subsection 8” and substituting “this
section”. As amended, subsection 5F(9) will provide that for
the purposes of section 5F, a person who enters Australia on an
aircraft is taken to have entered the migration zone by air only if
that aircraft lands in the migration zone. The ‘migration
zone’ is defined in subsection 5(1) of the Act to mean the
area consisting of the States, the Territories, Australian resource
installations and Australian sea installations and, to avoid doubt,
includes land that is part of a State or Territory at mean low
water; sea within the limits of both a State or a Territory and a
port; and piers, or similar structures, any part of which is
connected to such land or to ground under such sea; but does not
include sea within the limits of a State or a Territory not
including a port. The purpose of this amendment is to make the
definition of “entered the migration zone by air”
applicable to all of section 5F not just subsection 5F(8). This is
necessary as that wording will now be used in paragraph
5F(1)(b).

97.
New item 3 sets out how the amendments made by Schedule 2 to the
Bill are to apply. It provides that the amendments apply in
relation to people who become unlawful non-citizens because they
enter Australia on or after the commencement of new item 3 of
Schedule 2, that is, anyone who enters Australia on or after the
day after the end of the period of 5 years beginning on the day on
which the Bill receives the Royal Assent. The effect of this is
that any person who becomes unlawful because they enter Australia
by sea or enter at an excised offshore place by air before the
commencement of Schedule 2 will be subject to the provisions of the
Act as amended by Schedule 1 to the Bill. If the person enters
unauthorised by sea on the Australian mainland, that person will
become a designated unauthorised arrival on entry, and will be
liable to be taken to a declared country under subsection 198A(1)
of the Act for processing of any refugee claims. Anyone who enters
unauthorised by sea on the Australian mainland on or after the
commencement of Schedule 2 will not be a designated unauthorised
arrival and not liable to offshore processing.